Arizona high court rules Secretary of State must turn over list of noncitizens on voter roll

Maricopa County must provide a conservative watchdog group with a list of noncitizens currently registered to vote, the Arizona Superior Court ruled on Thursday.

America First Legal (AFL) filed the suit in August.

"As the Court admonished the parties prior to and during the hearing, the issue for the Court to decide is whether the records that Plaintiff requested must be released pursuant to Arizona’s public records law," the high court's order reads. "Despite the political undertones, this is simply a public records case."

During an evidentiary hearing, Arizona Secretary of State Adrian Fontes testified that a system error had affected approximately 218,000 registered voters, the court document states.

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The order notes that Fontes acknowledged having a partial list of about 98,000 voters who have not confirmed their proof of citizenship but stated that no complete list of all 218,000 affected voters exists. Fontes attributed a government press release's mention of a complete list to "hasty drafting" and unclear language. He also claimed that the Motor Vehicle Division (MVD) had not provided him with any list containing personal information for the additional voters potentially lacking sufficient documentation. 

However, the court concluded his testimony was inconsistent; Fontes initially denied possessing the list of 98,000 voters before amending his statement.

"His testimony suggested that he lacked detailed familiarity with the AZSOS’s [Arizona Secretary of State] efforts with regard to the issue and with regard to the records in the possession of the AZSOS related to the 218,000 individuals," the court document states.

Additionally, the order chides Arizona's Department of State for presenting Professor Robert Pape, a political science professor at the University of Chicago, as an expert witness. 

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The court said it assigned minimal weight to his testimony and report. Much of Pape’s testimony focused on national trends in political violence, lacking specific analysis related to Arizona, according to the court document. 

During cross-examination, Pape acknowledged that he had conducted no research pertinent to the state. His assertion that releasing the requested information could lead to violence or harassment was largely speculative and based solely on national statistics, the court document notes.

"The credibility of Professor Pape’s testimony and report was further diminished by what appeared to be gratuitous political bias in his report and in his testimony," the high court concluded. "The Professor’s opinions regarding general political violence focused almost entirely on allegations of past and anticipated prospective violence from only one side of the political spectrum, and only related to former president Donald Trump."

Fontes and Pape "argued that producing the list of 218,000 voters to to AFL's client would expose those individuals to the risk of harassment and violence."

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"However, the only evidence they presented was about generalized threats of elected-related political violence, most against elected officials," the court document read. "They failed to identify any specific threats of violence or harassment."

The decision comes after AFL filed suit on behalf of the nonprofit group Strong Communities Foundation of Arizona and Yvonne Cahill, a registered voter and naturalized citizen in Maricopa County, in August. 

AFL had previously given Maricopa County one week to address the alleged noncitizens on its voter rolls.

The lawsuit claims that, as of April 2024, more than 35,000 registered voters in Arizona had not provided proof of citizenship, limiting them to voting only in federal races, according to the Arizona Secretary of State’s Office.

The lawsuit alleges that Arizona's voter registration system creates a split between those who provide proof of citizenship (DPOC) and those who do not. Under Arizona law, DPOC is required for state and local elections, but the U.S. Supreme Court has ruled that the federal voter registration form does not mandate this requirement. Consequently, Arizona has a bifurcated system where voters who use the federal form – known as Federal-Only Voters – are restricted to voting only in federal elections.

Maricopa County Recorder Stephen Richer, through his attorney, stated that he would not take any action, "citing, among other things, concerns for the safety of voters, and concerns about the accuracy of the list," and claimed his office is already complying with the law, the Arizona high court document read.

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On Sept. 26, Strong Communities Foundation of Arizona was informed through the secretary of state's portal that its Public Records Request (PRR) had been "closed." A note added to the file indicated that a response was released on Sep. 23, leading the organization to conclude that the PRR had been denied.

"THE COURT FINDS specifically that the letter of September 24, 2024 and the NextRequest closure of the file with an explanatory note stating that ‘our response was released’ collectively constitute a denial of the PRR," the high court's Thursday order stated.

Fontes told Fox News Digital that the office "is considering all of our legal options."